Many condominium corporations have rules imposing weight restrictions on pets allowed in the condominium.  These restrictions often oppose occupants who wish to keep their pets and corporations who have a duty to enforce their governing documents.  This is exactly what happened in the recent court case Simcoe Condominium Corporation No. 89 v. Dominelli. Of particular interest in this case is the fact that the dog’s owner attempted to present her dog as a service dog. At the risk of giving away the ending, the matter does not end well for Peaches, a Miniature Golden Retriever/Australian Shepherd mix.

It all started in July 2014 when Ms. Labranche moved into her fiancé’s condominium unit. Both Ms. Labranche and her fiancé, Mr. Dominelli (collectively referred to as the “Occupants”), knew that the Corporation’s Rules provided for a 25-pound weight restriction on dogs and cats. Despite this, Ms. Labranche brought along her dog named Peaches.  A month after Ms. Labranche’s arrival at the Corporation, the property manager sent a letter advising that Peaches had to be removed from the unit within two weeks because it exceeded the weight limit and, therefore, was in violation of the Corporation’s Rules.

Then followed a series of exchanges between the Occupants and the Corporation. The Occupants first took the position that the dog was being used by Ms. Labranche as a therapy dog for her work with autistic children. But, after having been advised by the Corporation that the dog had to go unless it was servicing a resident of the unit (as opposed to the children with whom Ms. Labranche worked), the Occupants took the position that the dog was also a service dog for Ms. Labranche.  In support of this allegation, Ms. Labranche submitted an undated letter from a physician (who was not her family doctor).  This letter did not identify any specific disability, but was limited to indicating that the dog helped Ms. Labranche deal with stress, past abuse and emotional needs.  When the Corporation requested further medical information directly from the doctor in question, Ms. Labranche refused to cooperate.  Based on this, the Board denied Ms. Labranche’s request for accommodation.  The Corporation took the position that there was no objective medical evidence that supported that Ms. Labranche had a disability under the Human Rights Code (the “Code”). The Corporation also took the position that there was no evidence that Ms. Labranche’s disability (if it existed) necessitated a dog to be over 25 pounds.

In the meantime, Ms. Labranche had requisitioned a meeting of the owners to remove the 25-pound weight restriction in the Rules.  Her letter to the owners was “signed” by Peaches, with a paw print. The owners’ meeting was held (presumably, at least 15% of the owners of the human kind supported this requisition). Still, the majority of the owners voted to keep the rule on pets with the weight restriction.

Peaches was removed from the unit for a short period of time, but Ms. Labranche returned the dog to the unit and advised that she would not remove Peaches unless ordered to do so by a court.

In its decision, the Court first noted that Ms. Labranche had the initial onus of establishing that she had a disability within the meaning of the Code, and to demonstrate that the 25-pound weight restriction on pets adversely affects her because of her disability. This is important as Ms. Labranche was not prohibited from having a service dog, but only from having a service dog which exceeded 25 pounds. Things may have been different if the dog required to accommodate a disability had to be over this weight limit.

The Court further noted that “stress” is not a disability recognized under the Code and that to establish a “mental disability”, a diagnosis of some recognized mental disability, or at least a working diagnosis (or an articulation of clinically-significant symptoms that has specificity and substance) is required. Since the Occupants had not provided such evidence, the Court found that they did not establish a prima facie case of discrimination.

The Court also noted that, in the event the Corporation had in fact a duty to accommodate Ms. Labranche, it was of the view that the Corporation had fulfilled its duty. Indeed, the Corporation was entitled to seek further information about Ms. Labranche’s disability-related needs and was entitled to adequate and objective medical information. By refusing to provide such information, the Occupants failed to cooperate in the accommodation process.  This is an important tool for corporations struggling with similar requests.

At the end of the day, the Court ordered that Peaches be permanently removed from the Corporation’s premises.

Owners who request a form of accommodation from their condominium should ensure that the disability on which they base their request is a disability for the purposes of the Code. They should also cooperate with the corporation’s investigation by making available adequate and objective medical information. On the other hand, condominium corporations who are faced with a request for accommodation should enter into a dialogue with the requesting individual. It is important for a corporation to approach the matter with an open mind. Management also has to treat the individual making the request with respect and tact. Still, corporations are entitled to some information on which to base their decision. Keep in mind that a corporation’s obligation to accommodate is both procedural (how it treats the request) and substantive (the actual attempts to resolve the situation and accommodate a reasonable request). Keep also in mind that corporations have a duty to accommodate a disability but only up to undue hardship. That is to say that a corporation would not have to accommodate someone’s disability if it imposed undue hardship onto the corporation.